Court of cassation, Social Division, October 18, 2023, 22-11.339, Published in the bulletin
The employer is only entitled to allege the fraudulent nature of an employee’s candidacy before the industrial tribunal (CPH), in order to set aside the special protection of employee representatives, if he has contested the regularity of this candidacy before the judicial court (Tribunal Judiciaire) within 15 days of the election.
Our comment :
An employee who informs his employer of his intention to stand for election also benefits from special protection in terms of dismissal: Labor Inspection authorization is required to pronounce the dismissal, when the employee has proved that the employer was aware of the imminence of this candidacy before the summons to an interview prior to dismissal (L.2411-7 of the Labor Code).
This is a confirmatory ruling (precedent: Cour de Cassation, Social Division, April 4, 2006, 04-42.898: concerning the fraudulent nature of an imminent candidacy; Cour de Cassation, civil, Social Division, May 13, 2014, 13-14.537, Published in the bulletin: concerning the fraudulent nature of a candidacy of which the employer had been informed by a trade union).
Once again, the French Supreme Court reiterates that – even if the employer considers the employee’s candidacy to be fraudulent, even if the employer is informed of this candidacy before the pre-electoral protocol agreement is signed, and even if the elections are unsuccessful due to a lack of candidacy – the employer cannot dismiss the employee without Labor Inspection authorization if he has not previously contested the employee’s candidacy before the judicial court, within the 15-day period following the elections.